Adikie v Tanihu and Another (A1/03/2024) [2025] GHADC 178 (27 January 2025)

IN THE DISTRICT COURT HELD AT SEGE ON MONDAY, THE 27TH DAY OF JANUARY, 2025. BEFOREHER WORSHIP VICTORIA AKUA GHANSAH ESQ. AS MAGISTRATE. SUIT NO. A1/03/2024 ADIKIE HANNAH KALAM PLAINTIFF VRS 1. ALEX TANIHU DEFENDANTS 2. DORTUMOR MENSAH JUDGMENT This is an action mainly for declaration of Title to a piece of the land situate at Sege. The identity of this land is not in doubt. Plaintiff claims she bought one plot of land measuring 100 x 120 from her grantors in 2010. She afterwards constructed corner pillars with her name and telephone number on it. Then in 2024 she was informed that the first defendant was developing her land. It was the case of the first defendant that, the second defendant sold the land to him. Plaintiff filed a writ of summons and the accompanying claim against the defendants on the 11th day of March, 2024 for the following reliefs; i. Declaration of the Title and ownership of all the parcel of land situate, lying at Sege off Sege Aflao Road measuring 0.350 acres which Defendants have trespassed on the land and started developing it without the consent and approval of the plaintiff. ii. Recovery of possession. iii. Damages of Trespass. 1 iv. Costs. Before hearing of the suit, 2nd Defendant whom the court directed 1st Defendant to join the grantor through whom he derives his title to suit to bring finality to the matter. Subsequently the 2nd Defendant (D2) who claims some interest in the disputed land and who may likely to be affected by the result but have not been made a party, the court directed that 2nd Defendant should be made a defendant in the suit as the case maybe. He was joined to the suit as 2nd Defendant after all due process has been followed. This is a classic case for declaration of title to land as such that the Plaintiff has the onerous burden to discharge. She has the burden of proof in this matter. In all civil cases the general rule is that the party who in his pleadings or his writ raised issues essential to the success of his case assumes the onus of proof as was stated in Faibi v State Hotels Corporation [1968] GLR 471. The onus is on Plaintiff to satisfy the court that he is entitled on the evidence by him. This legal preposition was succinctly expressed by the Supreme Court in the case of Ababio v Kwasi [1994-95] GBR 774 AT 777 where Aikins JSC stated as follows; “the general principle of law is that it is the duty of a plaintiff to prove his case that is, he must prove what he alleges.” Both parties seek declaration to title to land each of them carries the burden of proof of its perceived title to the land as per section 11(1) of the Evidence Act of Ghana 1975(NRCD 323) which requires a party who asserts a claim to offer sufficient evidence to avoid an adverse ruling to his claim, a party’s success depends on the strength of his case not on the weakness of the case of opposing party. Also section 17 (a) and (b) of NRCD 323 stipulates that on allocation of burden of producing evidence “except as otherwise provided by law; 2 a. The burden of producing evidence of a particular fact is on the party against whom a finding on that would be required in the absence of further proof; b. The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact” Sections 11(4) and 11(2) of the Evidence Act 1975 (NRCD 323) provides without exception that the standard of proof in all civil cases is proof on the preponderance of probabilities. This was affirmed in Adwumeng v Domfeh [1996-97] SCGLR 66. During the hearing it was only the Plaintiff who adduced viva voce evidence. The witnesses of Plaintiff as well as the defendants and their witnesses all filed witness statement. SUMMARY OF PLAINTIFF’S CASE Plaintiff avers that, in or about the 8th of March, 2010, she acquired the land in dispute from Michael Nartey, Mary Nartey and Andrew Missiso situate and lying at SEGE off Accra Aflao Road, Opposite the Gas filling Station. One Kwame Emmanuel told her someone has land he is offering for sale. Plaintiff claimed that her grantors were the original customary owners of a vast portion of land which includes the land in dispute from Nakomkope. The plaintiff stated that she constructed corner pillars on the Land and deposited cement blocks on the land for development. The land was demarcated to her by Missiso Michael who was one of the grantors. It was only one Plot of land. Plaintiff avers she paid GH¢1,800.00 and a receipt was issued to her. Plaintiff tendered in evidence the temporal receipt issued by the grantors. It was admitted and marked EXHIBIT A after the Defendant did not object. She added that she erected concrete pillars with her name and telephone number on the pillars. She told court she knew only one boundary owner called Agudey. The grantors told her that she shared boundary with the 2nd Defendant. Agudey called her in 2012 two years after she acquired the land that the 2nd Defendant has demolished her pillars. A report was 3 made at the Dawa police station, 2nd Defendant was arrested to the police station. Plaintiff avers that she was asked to bring her grantors. They went to the Police station. The Police asked her to bring her receipt which she sent to them. It was resolved that the land was sold to her by my grantors. Last year December 2023, she was with her daughter in Accra when she had a call from one Emmanuel Kwame that, someone has cleared her land and concrete blocks on the land. Plaintiff claimed she had concrete footings on the land. According to Plaintiff she informed Emmanuel Kwame to stop 1st Defendant who was clearing the land. 1st Defendant refused to stop. He continued clearing the land. 1st Defendant destroyed the footings valued about GH¢10,000.00. When she came back it was true that 1st Defendant was destroying her foundation and the blocks. Plaintiff tried to stop 1st Defendant but it was to no avail. The plaintiff further stated that she sent the matter to the Chief of Nakomkope for settlement however, while settlement was ongoing, the 1st Defendant raised pillars and casted concrete at footing level on the disputed land. Hence this action against 1st Defendant. The 2nd Defendant who was the grantor applied to join as a second Defendant. PW1 IS EMMANUEL KWAME A FARMER PW1 testified that the Plaintiff informed him in 2010 that, she wanted to buy a land to develop. PW1 stated that the plaintiff’s grantor had informed him that he had a piece of land for sale. PW1 added that he informed plaintiff and she expressed interest in the said land and subsequently purchased it. The Plaintiff has been on the said land until the 1st Defendant (D1) encroached on the said land. PW1 stated that the 1st Defendant was asked to stop encroaching upon the said land but he refused. PW2 IS MARY NARTEY A TRADER AND ALSO THE ONLY SURVIVOR OF THE GRANTORS FOR PLAINTIFF 4 PW2 testified that the Plaintiff is her vendee. According to PW2 on the 8th of March, 2010, she together with Michael Nartey and Andrews Missiso sold a piece of land to the Plaintiff. She also stated that the said land was bequeathed to herself and her younger brother named Narh Nartey by their father who was the owner of the said land. PW2 stated that the first Defendant was asked to stop encroaching upon the said land but he refused. In her submission to court PW2 averred that she was one of the Vendors/ witnesses of 2nd Defendant in the land transaction in 2004, between her deceased father, 2nd Defendant but when the demarcation was done for 2nd Defendant, she was not present. She only relied on his uncle who told her that the land for 2nd Defendant was only two (2) plots of land not two acres as 2nd Defendant is claiming. That the plot for the plaintiff was not part of the land demarcated for 2nd Defendant, so he cannot claim that part of the land in dispute. After the Plaintiff had closed her case, the defendants were called to open their case. 1ST DEFENDANT (D1) IS ALEX TANIHU…. It is now the case of the 1st defendant who had already filed a statement of defence of the claims in response to the statement filed by Plaintiff. 1st Defendant denied almost all the averments contained in the statement of claim of the Plaintiff. 1st Defendant in his evidence in chief averred that he acquired the disputed land from 2nd Defendant when he needed land to purchase. After selling the land a receipt was issued to him by 2nd Defendant. 1st Defendant told court that he took possession and occupation of the said land and started his construction work on the land. His grantor (2nd Defendant) informed him that he acquired the land from Narh Nartey, Tofah Agbenyegah and Mary Lomoki Nartey Tofah on the 1st of July 2004. Plaintiff later sent the land issue to the chief and elders of Nakomkope. At the chief’s palace 2nd Defendant presented his land document ascertaining that he indeed bought the said land. The dispute as to the ownership to the land was settled at the chief’s palace. The chiefs advised Plaintiff and her grantor that the land belongs to 2nd Defendant. 5 Q. The land belongs to me. A. I know 2nd Defendant to be the owner of the disputed land. Q. I have my pillars on the land with my name on the pillars and my telephone number. A. The land in contention is about 30ft away from your pillar. Q. Do you now admit I have a land there. A. You sent me there and showed me your land and pillar but where I am working does not fall within your land. Q. I am putting it to you that you have entered unto my land. A. There is no other pillar apart from the one you showed me and that one is far away from the land in I am developing. (2ND DEFENDANT) IS MENSAH DOTSUMOR A SALT MINER AT SEGE In opening his defence, 2nd Defendant testified that he acquired a vast land from his grantors measuring approximately two acres or more in 2004. These grantors were Narh Nartey Tofah Agbenyegah and Mary Lomoki Nartey Tofah about six (6) years before the Plaintiff claimed she purchased part of this same land from PW2. A deed of conveyance was prepared for him which was duly executed. The said land measures; i. On the North side 440.0 bounded by the Vendors property measuring ii. In the south 440.0….. iii. West 270.0…… iv. East 350.0….. 2nd Defendant added that he farmed on the land for so many years. He had been in occupation and possession of this land, carried on overt activities without any hindrance. 2nd Defendant avers that two of the plaintiff’s vendors Mary Lomoki Nartey and Michael Nartey were children of his Vendors and witnesses respectively in his land transaction.it 6 was after the death of Narh Nartey and Tofah Agbenyegah that Mary Lomoki started the reselling portions of the land to other buyers but he stopped these people. 2nd Defendant averred further that, PW2 sold part of my land to one Cynthia Daiki Akuteye who brought a legal action against 2nd Defendant at the Ada District Court. Whilst the case was pending at Ada court, Cynthia Daiki Akuteye again instituted a second action against him at the Sege District court on the same subject matter. Her case was dismissed by the court and a costs of GH¢2,000.00 awarded against her. When he removed the corner pillars from the land Plaintiff reported this matter to the Dawa Police sometime past. He was invited and again presented his document to the police. We were advised to take civil action but the plaintiff did not do anything. It was the case of 2nd Defendant that, when he became incapacitated PW2 took advantage of his disability and started selling portions of his land without his consent. One of the affected persons was the plaintiff. 2nd Defendant in his testimony stated that he has sold out portions of this land to interested people who have developed them into dwelling houses and are still in occupation. He has also leased portions to mechanics and a carpenter who have all established their shops without any disturbance and are still in occupation under his authority. 2nd Defendant confidently told court that the portion carved from his land to plaintiff by PW2 because in 2010, PW2 did not have any land at that place and for that matter Plaintiff was not entitled to her claims. DW1 IS OFOTSU DORTSUMOR, A DRIVER AT ASHIAMAN He is the son of 2nd Defendant. It is the testimony of DW1 that the disputed land forms part of the land for 2nd Defendant. He acquired this land in 2004 they have been farming on this land for so many years growing different types of crops without hindrance. The place has now been turned into a residential area. The People 2nd Defendant sold out some portions to are still in occupation without hindrance. Recently 2nd Defendant sold out a portion of this land to 1st Defendant which brought about this dispute. The whole area 7 including the disputed land is for 2nd Defendant. DW1 maintained that he does not know the exact size of the land. It was more than two (2) acres. I do not know the people he shares boundary with but I know the people he has sold some portions to are still on the land. DW2 IS FRANCIS KABO A CARPENTER AT SEGE. DW2 testified that when he finished his carpentry apprenticeship, he needed a place to put up a carpentry shop. He contacted 2nd Defendant who leased a place for me where he established his carpentry shop. Currently I am still on the said land. The land is opposite the gas filling station of Sege Kasseh road where the parties are contesting. DW2 added that he has been on the land for the past 10 years. It is 2nd Defendant who gave the land to me 10 years ago. 2nd Defendant showed me a vast land he owes but he was only given a small portion for his carpentry. The land is vast and he does not know all the boundary of 2nd Defendant. Plaintiff did not cross examine this witness at the close of his case. The two parties did not present any Site plan to depict where specifically their various land lies on the disputed land. The plaintiff admits that D2 has his land in the area apart from her portion whereas 2nd Defendant lays claim to the whole area with measurement in his indenture which includes the portion of the plaintiff. To enable the court to make a proper determination at the close of the hearing, an order was directed at the District Planner (Surveyor) the Ada West District Assembly within the jurisdiction of the court to draw a composite Plan that incorporated and superimposed the two Site plans of the parties as per their survey instructions and the description they made to cover their boundaries on the ground. The court can hardly make a proper decision without the site plans of the parties. The Surveyor visited the land with the parties where both of them directed him to their boundaries as they appeared on their individual documents and within their knowledge. 8 The Plaintiff relied on a temporal receipt issued by her grantors. She personally gave a description of where the land is situated and outlined her boundaries. According to the surveyor all the four (4) corner pillars for Plaintiff were still intact on the land so it was easy to identify her parcel of land as she directed. There was no other development on the land as to footings or signs that a previous construction has been demolished. The plaintiff’s claim of having a foundation and chippings on the land were false. The land for 2nd Defendant was vast measuring about two and half acres on the ground almost occupied by tenants and his Purchasers who have taken possession and already constructed the residential structures on the land without any disturbance from any quarter. The court adopted the surveyors report marked as EXHIBIT E…after it was subjected to cross examination by Plaintiff. In the report of the surveyor the land of the plaintiff lies close to the center of the land for the second defendant surrounded by portions of the second defendant’s land at the Eastern boundary. It was not at the edge for one to say that the second defendant has trespassed unto the plaintiff’s land. It would therefore be difficult to conclude that portion does not belong to the second defendant. SUMMARY OF 1ST DEFENDANT’S CASE A summary of the 1ST Defendant’s case was that, he bought the disputed land from one James Mensah Dortumor who has been in possession of the land till Plaintiff brought this action against him. The Defendant also stated that, his grantor told him that he bought the land from the Nakom family of Nakomkope of Sege. The defendant also stated that the matter as to the ownership of the said land was dealt with at the chief’s palace. DW1 IS OFOTSU DORTUMOR A DRIVER. DW1 testified that the second defendant is his biological father. He further stated that, the disputed land was part of a land that the second defendant bought from Narh Nartey 9 Tofah Agbenyegah and Mary Lomoki Nartey Tofah on the 1st of July, 2004. He also stated that he together with his siblings and their father farmed on the land without hindrance after its purchase. DW1 further stated that the second defendant sold out portions of the land to others without difficulties. He stated that the second defendant also sold out part of the said land to the first Defendant out of which this instant case was instituted. SUMMARY OF SECOND DEFENDANT’S CASE A summary of the Second Defendant’s case was that he bought the said land from Narh Nartey Tofah Agbenyegah and Mary Lomoki Nartey Tofah on the 1st of July, 2004. He stated that the land is situated at Sege-Ada, off Accra-Aflao Road containing an approximate area of 4.23 acre. He stated that, he cultivated food crops on the land after purchase. He also stated that PW2 was among his vendors and Michael Nartey was also a witness to the said sale. He further stated that after the death of Narh Nartey Tofah Agbenyegah one of his grantors, Mary Lomoki begun reselling the lands sold to him. He stated that, the matter was sent to the Chief of Nakomkope who advised the plaintiff and her vendor to stay away from the said land. At the end of the case of the parties the legal question this court would like to address is; i. Whether or not the Plaintiff is entitled to her reliefs ii. Whether or not the grantors of Plaintiff have the right to sell the land in dispute to Plaintiff iii. Whether or not the disputed land is the property of second Defendant As I have said earlier, it is the party who asserts that has the burden or obligation to prove. Even though both parties made claims to the disputed land, it is worth repeating the cardinal principle in our civil jurisprudence that plaintiff who made assertions to having purchased the piece of land near 2nd Defendant’s land but not within his land bore 10 the burden to lead evidence in proof of those assertions. It was not the defendants to disprove the allegations made by Plaintiff. Having made the allegation that her parcel of land does not fall within the portion of 2nd Defendant but shares boundary with 2nd Defendant, it was the plaintiff who retained the burden to prove such purchase against the second defendant. i. In Odoi v Hammond [1971] 1GLR375 CA, Azu Crabbe JA (as he then was) said at page 283 that; “for a … family to succeed in an action for declaration of title it must prove its method of acquisition. In Emegwara v Nwaimo (1953) 14 WACA 347, Verity CJ said at page 348 that it is essential before any declaration of title to land is made the party seeking it should state specifically what is the nature of the right he claims and that he should prove that the terms of the grant under which he claims conferred such a right…” Plaintiff in proving her case called only her surviving grantor Mary Lamoki Nartey (PW2) and Kwame Emmanuel who witnessed the sale. The question this Court would ask is, was the purported transaction between Plaintiff and her grantor valid. Pw1 could not tell the Court emphatically that 2nd Defendant land does not stretch to the boundaries he claimed as. She was not present when the demarcation was done. EVALUATION OF EVIDENCE Whether or not Plaintiff The Plaintiff in her testimony to the Court and her two witnesses called confirmed that the land was sold by PW2 and two others who are deceased in 2010, when the same land has been sold to 2nd Defendant in 2004 of which PW2 was among the grantors. 11 In an earlier decided cases it has been held that, sale of land is a legal process whereby the ownership or interest in land is transferred from one person to another so that the interest therein become vested in another person. It is appropriate to visit the land and find out who the boundary owners are and whether they all trace their title to same source. The report from the composite side plan which was drawn out of the instruction of the two parties, the land of plaintiff falls within that of the second defendant who at all material time resisted plaintiff and anyone from laying claim to that portion of land that falls within his boundary. It beats my imagination how the grantor of plaintiff went into the land of 2nd Defendant after they have transferred their interest in the besides the B. Whether or not the grantors of Plaintiff have the right to sell the land in dispute to Plaintiff One who has disposed of land cannot purport to dispose of it again.” Nemo dat quod non habet.” It is an elementary principle of law that a person can give no better title than he possessed himself. As such if a grantor purports to transfer property of which he is not the owner to a grantee the purported grant would pass nothing. No one can give that which is not his. Boateng v Dwinfour. In Adu- Sarkodie v Karam & Sons [1975]1GLR 411; the court held that a purchaser who buys a property must make enquiries of the person in possession if the vendor is not the one in possession. He must find out from the one in possession what his rights are and if he fails to do it he would buy the property subject the interest of the other persons in possession… A potential owner must carry out some preliminary enquiries to find out whether or not the prospective vendor is the actual owner or has permission, if he is representative, to sell. One would also have to find out the nature of the interest that the vendor has in the 12 land and what interest he is transferring on the land. This implies that one would have to request for a search to assess the competence of the grantor. In the instant case the only survivor of the Plaintiff’s grantors which is pw2 cannot tell emphatically if the size of the land for 2nd Defendant was two plots or two acres in her evidence adduced before this court and during cross examination. EXCEPTS FROM CROSS EXAMINATION Q. So, if am working on the said land I committed any crime. A. No. it was after the meeting at the Chiefs palace that I realized the 2nd Defendant entered into the Plaintiffs. On the 8th of March, 2010, Michael Nartey and I sold the land measuring 100ft X 120ft to plaintiff. At the meeting it came up that 2nd Defendant claimed two (2) acre instead of two (2) plots of land. Q. At the Chief’s palace you told us your uncle told you the land is two so you did not know whether it was two (2) plots or two (2) acres and you did not go with them when they were going to alienate the land to 2nd Defendant in 2004. A. That is so. My Uncle told me the land for 2nd Defendant was two (2) plots but not two acres and the documents were brought to me to thumbprint. PW2 in this present case has not acted with due diligence associated with the sale and purchase of land to satisfy herself of the exact size of the land alienated to 2nd Defendant in 2004. She cannot just by word of mouth say that her uncle told her the land was 2 plots and that ends it there. 2nd Defendant herein has resisted any attempt by anyone to enter on the portion he had claimed to himself against all persons including PW2 who is Plaintiff’s grantor. The grantor divested her interest in the land to 2nd Defendant the moment she witnessed the contract of sale entered into with 2nd Defendant in 2004. The interest transferred at the sale of the land to 2nd Defendant was absolute. The purported sale of part of this land to the Plaintiff 13 in 2010 at all material time was invalid in the sense that the grantor has divested himself of all his interests in the property. One who has disposed of land cannot purport to dispose of it again. see Brown v Quarshigah [2003-4] SCGLR 930; Ntim v Boateng [1963]2 GLR 97 C. Whether or not the disputed land is the property of second Defendant Ownership of a land is a person who can show that he has possessed the land for so long that there can be no reasonable probability of adverse claim. Title to land is the means by which a person establishes his title to land. It may take the form of a document however with the exception of customary law grants a good title is always documentary” As was held in the case of Akyea-Djamson v Duagbor [1989-90] 1 GLR223, a person in possession (of land) has.” nine-tenths of the law” to his favor in regard to ownership with the outstanding one tenth reposed in any person aspiring to oust him, to make out his claim as to his entitlement to be declared an owner. According to 2nd Defendant he has been in possession since 2004. He first farmed on the land with his children for so many years before demarcating there into building plots. • 2nd Defendant has also given portions to other people who have constructed in possession and occupation, mechanics have also been given portions to construct their garages, a carpenter is also on the land on portion of the and is still there as testified by DW2. All these occupants are on the land and acknowledge title to 2nd Defendant without any disturbance. It shows a positive act of possession and 14 amounts to a clear proof of his dealing with the land since it was delineated to him. • The disputed land plaintiff is claiming, in fact, where the plaintiff’s directed the Surveyor as to the boundaries of her land, is situated as by the site plans submitted to Court by the Surveyor within the portion of 2nd Defendant. • Further when another person Cynthia Daiki Akuteye instituted an action against 2nd Defendant on portion of his land at Ada District Court, the case went in favor of 2nd Defendant. All these have shown acts of possession by 2nd Defendant and goes to confirm the decision in Majolagbe v Larbi [1959] 1 GLR 190. “A person in physical occupation and possession has the superior title” A careful study of the evidence led by the Plaintiff, there is not much as to possession apart from the pillars she fixed on the land which was destroyed by 2nd Defendant and the matter went to Dawa Police station. 2nd Defendant has always shown ownership by fighting back anyone who attempted to trespass on this land and what he has done on the land since he acquired it in 2004. On the preponderance of probabilities, I find as a fact from the evidence on record that; 1. The plaintiff acquired the portion of the land she claimed from PW2 and 2 other grantors who are deceased. 2. That this land squarely falls within the portion of second defendant. 15 3. The interest of 2nd Defendant acquired was in 2004 whilst Plaintiff was 2010. 4. The same grantors witnessed the transaction for 2nd Defendant the subsequent purported sale to plaintiff in 2010 was not only invalid. It was null and void ab initio. 5. I find therefore that plaintiff has no interest in the plot lying within the portion of 2nd Defendant as the grantors did not have any interest at that time to transfer to her. BY COURT On all the totality of the evidence available, this court hold that Plaintiff failed to produce requisite satisfactory evidence to proof of root title and for that matter a valid one to the disputed land. It was determined that the title of 2nd Defendant was first in time. Besides 2nd Defendant has a better title to the land in dispute as he was able to prove overt acts of occupation and possession and same accordingly declared. Plaintiff failed to prove her claims, she had genuine claims on the writ of summons which called for determination but failed as her grantor had divested her interest in the land to the second defendant in 2004. I shall be considerate in assessing costs. I therefore assess costs at GH¢1,000.00 against the Plaintiff in favor of the Defendants. (SGD) VICTORIA AKUA GHANSAH (MAGISTRATE) 16